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On 17 March 2018, the New York Times and the Observer of London broke the news that the SCL Group and Cambridge Analytica used the data of 50 million Facebook users – without their knowledge or permission – to help the Trump campaign to influence the US elections. (The original New York Times article can be found here).

In Britain, Cambridge Analytica is facing investigations by Parliament and Government Regulators into allegations that it performed illegal work on the “Brexit” campaign. Closer to home, reports have surfaced that the companies played a role in President Uhuru Kenyatta’s 2013 and 2017 campaigns for the Kenyan Presidency. The Managing Director of the company has claimed that not only did they conduct a survey, but “rebranded the entire party twice, written their manifesto” and “then we’d write all the speeches and we’d stage the whole thing – so just about every element of the campaign”.

There has been a huge uproar in the US and UK with Mark Zuckerberg being called before the US Congress and UK parliamentary panel to answer questions on the debacle. Zuckerberg is set to appear before Congress today and tomorrow, but has declined the invitation to appear before the UK parliament.

The data of 50 million users which is at the heart of the congressional inquiry was collected over a number of years by Aleksandr Kogan, an academic based at the University of Cambridge, who developed an app which not only gathered data from the people paid to download it (people were paid to download the app which was advertised on a website for doing odd jobs online), but from all of those people’s friends as well. Reportedly, of the 50 million Facebook users whose data was collected, only 270 000 of those users had consented to having their data harvested. All that the researcher divulged to Facebook and the users was that he was collecting information for academic purposes.

It is now reported that approximately 60 000 South Africans’ data may have been breached after as few as 330 people downloaded the app designed by Aleksandr Kogan.

Facebook’s lax privacy policies have been called into question before. The American Civil Liberties Union (ACLU) has for years been calling on Facebook to clean up their act and implement more stringent data protection. (See the full ACLU post here)

In 2009, the ACLU warned against the lack of privacy when you took online quizzes:

‘Even if your Facebook profile is “private,” when you take a quiz, an unknown quiz developer could be accessing almost everything in your profile: your religion, sexual orientation, political affiliation, pictures, and groups. Facebook quizzes also have access to most of the info on your friends’ profiles. This means that if your friend takes a quiz, they could be giving away your personal information too.’

In 2016, the ACLU in California also discovered, through a public records investigation, that social media surveillance companies like Geofeedia were improperly exploiting Facebook developer data access to monitor Black Lives Matter and other activists. They again sounded the alarm to Facebook, publicly calling on the company to strengthen its data privacy policies and “institute human and technical auditing mechanisms” to both prevent violations and take swift action against developers for misuse.

The ACLU reports that Facebook has modified its policies and practices over the years to address some of these issues. Its current app platform prevents apps from accessing formerly-available data about a user’s friends. And, after months of advocacy by the ACLU along with the Center for Media Justice and Color of Change, Facebook prohibited use of its data for surveillance tools.

Facebook’s response to the Cambridge Analytica debacle demonstrates that the company still has significant issues to resolve. The ACLU points out that Facebook knew about the Cambridge Analytica data misuse back in December 2015 but did not block the company’s access to Facebook until hours before the current story broke. And its initial public response was to hide behind the assertion that “everyone involved gave their consent,” with executives conspicuously silent about the issue. It wasn’t until Wednesday, 21 March 2018, that Mark Zuckerberg surfaced and acknowledged that this was a, “breach of trust between Facebook and the people who share their data with us and expect us to protect it,” and promised to take steps to repair that trust and prevent incidents like this from occurring again.

The question remains: how will Facebook improve its privacy and data retention practices? With the EU General Data Regulation coming into force in May 2018, Facebook will be forced to comply with privacy principles which run contrary to its established business model. These include: having to request Facebook users’ consent in clear and unambiguous language to process their private data, mandatory notification of users when a data breach occurs, and providing users the ‘right to be forgotten’ which would empower users to demand that Facebook delete their data, stop any further dissemination and require third parties associated with Facebook stop any further processing of the data.

In South Africa, the Protection of Personal Information Act (POPI), upon coming fully into operation, will apply to the processing of data of the type used by Cambridge Analytica. Facebook and Cambridge Analytica would constitute the ‘responsible party’ and ‘operator’ respectively, placing certain duties on Facebook and Cambridge Analytica. South African Facebook users would have recourse with the Information Regulator or courts were a similar breach of data to occur after the commencement of the Act. Their claim would lie in the fact that Facebook would have breached the conditions for lawful processing of data laid out in Chapter 3 of POPI. These conditions include requirements similar to those in the EUGDR, such as: further processing limitation, which requires Facebook to only allow further processing of personal information which is reasonably related to the initial reason the data was collected for; security safeguards, meaning that Facebook would have to take reasonable and appropriate measures to ensure that the integrity and confidentiality of the data is ensured; and data subject participation, which gives the user the right to request confirmation that Facebook has their personal information, and request that this information be corrected or deleted.

Disclaimer: The opinions expressed by the Realising Rights bloggers and those providing comments are theirs alone, and do not reflect the opinions of the Legal Resources Centre. The Legal Resources Centre is not responsible for the accuracy of any of the information supplied by the bloggers.

The Legal Resources Centre, as part of the Global Campaign to Dismantle Corporate Power and, separately, the Treaty Alliance, was in Geneva during the final week of October 2017 for the third session of the open-ended intergovernmental working group (IGWG) on the elaboration of a binding treaty on transnational corporations and other business enterprises with respect to human rights.

The Global Campaign and Treaty Alliance are working collectively to advocate for a strong Binding Treaty to Stop Corporate Abuse and to prevent and remedy human rights abuses by transnational corporations and other companies.

The Binding Treaty process has been going on for many years. This was the crucial third session of the Inter-Governmental Working Group, where the draft elements of the Treaty were submitted by Ecuador, as the chair, for discussion. The submissions made during this session are on those elements.

The EU and others tried to force an end to this process by arguing that the resolution that constituted the Working Group provided for 3 sessions only and a new resolution must be sought to continue the work. The Treaty Alliance and allies worked hard on lobbying against this backlash and supporting South Africa, who is pushing for the process to continue. The outcome of the meeting, after tense negotiations on Friday last week, was that the chair must informally consult on how to take the process forward.

The Alliance and allies are pushing for a draft zero of the Binding Treaty to be presented and discussed at the 4th IGWG meeting at the end of next year.

The LRC made the following submissions during the sessions:

Oral Submission – Subject 1: General framework

Thank you Chairperson and congratulations on your appointment. My name is Lucien Limacher. I am from the Legal Resources Centre from the Johannesburg office in South Africa.

I am viewing the draft elements document from a viewpoint of respecting, protecting and promoting the core environmental and sustainability principles widely accepted and fundamental to the survival and development of vulnerable communities who face, often unwanted, development projects imposed by TNCs, OBEs and states.

At Preamble: In terms of the preamble, there are two core international environmental laws or policies that are currently not mentioned within the draft elements document, which play a critical role on the impact TNCs and OBEs have on human right violations. The first pertains to the lack of reference to the various international treaties on climate change; we cannot ignore the anthropocentric impact of TNCs and OBEs have on climate change and of course then on human rights. The second international environmental issue relates to the failure to acknowledge the Development Sustainable Goals that were agreed upon in terms of the 2030 Agenda for Sustainable Development read with the Rio Declaration and the Johannesburg Declaration on Sustainable Development. It is critical that TNCs and OBEs follow a sustainable development pattern that does not impact the livelihood of communities. As such the treaty should reflect in the preamble the above two aspects.

At Principles: Taking the above context into consideration, the same problem can be expanded on under the principles section wherein the draft elements document failed to take cognisance of the following critical environmental principles that impact the human rights discourse:

The first principle that must be included is the Cradle-to-Grave principle;

The second principle that must be included is Prior Environmental Impact Assessment Principle (this must go along with the human rights impact assessment mention in the draft element document);

The third principle that must be included is the Public Trust Principle;

The fourth principle that must be included is the Polluter Pays Principle; and

Lastly, the fifth principle that must be included is the Sustainable Use and Equity Principle.

Lastly, at Purpose: Within this section, it was mention that adequate remediation is to be used as an effective remedying tool. It is this submission that remediation must include rehabilitation of the environment if the environment has been degraded by an activity of a TNC or an OBE.

Thank you.

Oral Submission – Subject 2: Scope of Application

Thank you Mr Chairperson Rapporteur

The Legal Resources Centre is a public interest law firm based in South Africa. We represent individuals and communities in protecting their rights against the impact of often unwanted and imposed development projects in the extractives and other sectors.

We endorse the principle of the primary responsibility of States to protect and promote the human rights of its citizens against all transnational corporations and other businesses enterprises who abuse these. We cannot afford another narrow instrument that creates yet more loopholes for impunity to thrive. But we also cannot pretend that States do not operate in the context of the corporate capture of their law and policy making processes and its implementation. This is pervasive on the African continent, a continent regarded as the new frontier for extractivism and large scale agri-business.

While we strongly endorse explicit measures to be included in the treaty to guard against corporate capture suggested by colleagues earlier, we fear that these may not be sufficient to break the stronghold of corporate capture over the States mandated to protect and promote the human rights of their citizens. In order to make meaningful progress, this process must acknowledge the importance of placing relative power in the hands of the peoples, communities and individuals whose rights are affected by the actions of TNCs and OBEs.

They must be central to the decision-making processes that authorize projects and their implementation. The inclusion in decision-making of affected individuals provides a further safeguard against corporate capture. The principle of Free, Prior and Informed Consent, already entrenched in international law and increasingly recognized as imperative to the success of international voluntary standards, must be included in the treaty as a step towards not only providing remedies to human rights abuses, but indeed preventing those abuses from occurring. There is growing consensus in this room that prevention of abuse is indeed what we are collectively pursuing.

FPIC creates a meaningful seat at the table for those directly affected by the actions of TNCs and OBEs and at the same time strengthens the hands of States to act decisively in the interest of their people in the face of corporate interests. Even better, it ensures that rural women, who continue to bear the brunt of the impacts of TNCs and OBEs, are recognized as actors in their own development paths, rather than mere victims.

We thank you.

Oral Submission – Subject 4: Preventive Measures

Good afternoon Chairman Rapporteur. My name is Lucien Limacher from the Legal Resources Centre, South Africa.

One of the Legal Resources Centre’s missions is to seek cre­ative and effec­tive solu­tions by using a range of strate­gies. These, amongst others, include impact lit­i­ga­tion, law reform, par­tic­i­pa­tion in part­ner­ships and devel­op­ment processes, edu­ca­tion, and net­work­ing within South Africa, the African con­ti­nent and at the inter­na­tional level.

In capturing this spirit above, this section, Preventive measures, under the draft elements document can be the start of a creative and effective tool to stop the corporate impunity currently impacting affected communities and the environment.

Taking my colleague’s statement made yesterday that, “we cannot pretend that States do not operate in the context of the corporate capture of their law- and policy-making processes and their implementation,” it is fitting at this juncture that the following three points are made relating to the section on preventive measure:

The first point relates to the phrase, “all concerned TNCs and OBEs shall adopt a vigilance plan consisting of due diligence procedures to prevent human rights violation abuses.” Although a binding vigilance plan is welcomed it does not go far enough in preventing human and peoples’ rights including community rights that revolve around environmental pollution, degradation and even destruction of livelihoods. It is therefore proposed that the draft elements document incorporates, over and above a binding vigilance plan, an article or clause that allows for a procedure for public comment, consultation and, where relevant, consent or agreement with the plan at this early stage of a human rights risk assessment exercise or vigilance plan.

This brings me to the second point namely elaboration in the draft elements document to incorporate unequivocally the right to free prior informed consent (“FPIC”). The words “states shall promote adequate consultation” must, in the case of directly affected communities, include, “free prior informed consent to be obtained from affected communities.” Failing to recognise FPIC will leave affected communities by the wayside and allow the status quo to continue and over shadow universal human rights and to degrade the environment. FPIC and the right to development is recognised in the African Charter on Human and Peoples’ Rights, it is emphasised in the UN resolution A/HRC/RES/26/9 and in the Declaration on the Right to Development, adopted by the General Assembly through its resolution 41/128 on 4 December 1986.

Lastly, the third point refers to the human rights impact assessment. As mentioned in the Legal Resources Centre submission under general frameworks, it is critical than when a human rights impact assessment is undertaken that a similar impact assessment is carried out regarding the environment.

The Legal Resources Centre firstly responds to a comment made by a panelist on the topic of Jurisdiction this morning that corporate violations happen only in countries with “fragile democracies”. We strongly reject that suggestion. Evidence suggests that there is hardly a country in the world that is not the location of human rights violations by corporates. Perhaps our disagreement lies in what the panelist regards as human rights abuses. The purpose of this legally binding treaty is not only to end the grossest of human rights violation, but also those violations that, through corporate capture, have become normalized and even legalized in several countries. For examples, look no further than the land and resource grabbing and environmental degradation pervasive on the African continent.

The LRC notes that civil society and even states from across the world have persistently raised the principle and right of Free, Prior and Informed Consent (or FPIC) to be included in this treaty in this forum. As we move towards negotiating a draft text in 2018, we wish to elaborate on how FPIC should act as a mechanism for the promotion, implementation and monitoring of the human rights of affected communities. FPIC refers both to a substantive right under international-, regional – and indigenous customary law as well as a process designed to ensure satisfactory development outcomes.

To realise this right, the affected community’s decision whether to allow development that will affect their rights, should be made free from any obligation, duty, force or coercion. Secondly, the community has the right to make the development choice prior to any similar decisions made by government, finance institutions or investors. In the words of the African Commission on Human and Peoples’ Rights, the community’s right to FPIC is not realised if they are presented with a project as a fait accompli. Thirdly, the community must be able to make an informed decision. That means that they should be provided sufficient information to understand the nature and scope of the project, including its projected environmental, social, cultural and economic impacts. Such information should be objective and based on a principle of full disclosure. The community should be afforded enough time to digest and debate the information.

Finally, consent means that the community’s decision may be to reject the proposed development. Consent is not mere consultation. The community can say no. Because the right to say no places the community in a position to negotiate, it is also a process. FPIC is not designed only to stop undesirable projects, but also to provide communities with better bargaining positions when they do consider allowing proposed developments on their land or resources.

FPIC should not be relegated to a risk-management exercise. Rather, FPIC should be the basis upon which the relationship between the affected community and the company is built. The role of the State in enforcing this right is crucial, but not a prerequisite for building more equitable negotiating and bargaining positions between the affected communities and the developers.

Thank you.

Oral Submission: Subject 10: Victims

The Legal Resources Centre is a 4 decades old public interest law firm based in South Africa.

My colleagues and I are community lawyers who have represented communities against corporates and mining companies for 4 decades between us. We base our arguments on our experience, community instructions and numerous court cases.

We are adopting this slightly pompous introduction in reply to the expert corporate lawyer on the panel yesterday who introduced himself and rooted his knowledge and experience in taking instructions from corporate TNCs for a decade.

Communities in the south know themselves far better than TNCs, they know their histories and they will take responsibility for their destinies and that of their children. Our communities have knowledge and they have agency. They are not victims. Faceless TNCs in the capitals, their directors and their shareholders, their legal and financial advisors and financiers may never know what it means to be cared for in a community context.

We have time for just one story, but please know that there are many. This is the story of the Xolobeni community.

Ms Nonhle Mbuthuma Forslund is one of the great women leaders of the Xolobeni community, Pondoland South Africa, a community that has held out for more than a decade against an Australian mining company TEM … a titanium mine that would destroy the community and the livelihoods of the families on their ancestral land. The struggle against a mine that has also lead to the callous murder of the community leader Bazooka Radebe 18 months ago. The murder remains unresolved. Nonhle cannot be here today because a bureaucrat in the Swiss Consulate in South Africa rejected her visa application three times over… partly because her village does not have street numbers and electricity bills. But in fact she has much more …. She belongs. She belongs to her community and the community’s land. They know their history, they have an indigenous legal system and they remain committed to choosing their own development path in terms of pace and scale. Nonhle’s community went to court saying that law from below gives them the right to say no and we should support her with a binding instrument at the level of international law.

Yesterday, the Southern African Permanent Peoples’ Tribunal[1] Jurors’ report, was released. The Xolobeni and Marikana communities together with 17 other communities gave evidence before a jury consisting of peoples’ jurors. They have respect for law from below. The expert corporate lawyers should take note of what the report says (and we can provide them with copies), for example:

With economic gain as the prime motivation, anything that hinders that objective is treated by states and TNCs as an obstacle that must be subdued or eliminated. The pursuit of gains and profits for the TNCs and as revenue for governments place the communities and the environment at great risks.

It is important to explore legal mechanisms making the national governments and the TNCs accountable at domestic, regional and national level. It is vital for States to recognise progressive and participatory indigenous customary law. We must engage in the discussion of treaty law and state domestic law that can be self-executing and monitored by communities as principal actors, in co-operation with civil society. The evidence presented to the peoples’ tribunal shows that state and corporate law continues to mistreat the poor.

Chair Rapporteur, whoever tries to stop or delay this process today, and those who have not even showed up, shall have that reality on their conscience.

We thank you.

For more on the Binding Treaty: https://www.escr-net.org/corporateaccountability/hrbusinesstreaty

On the 6 April 2016, the Legal Resources Centre (LRC) held a side event at the 58th session of the African Commission on Human and Peoples’ Rights in Banjul, The Gambia. The side event discussed the United Nations proposed treaty on transnational corporations and other business enterprises with respect to human rights.

The side event attracted participants from various organisations across Africa. Our panel consisted of three staff members of the LRC and a member of the African Commission’s Working Group on Extractive Industries, Clement Voule. Unfortunately, Nomonde Nyembe from the Centre for Applied Legal Studies was unable to join us as a panellist due to an unanticipated injury.

LRC researcher, Mabatho Molokomme, facilitated the session. She gave a brief background on the Human Rights Council resolution and what it envisages for the treaty. This was followed by a summary of the first open-ended intergovernmental working group (IGWG) session that took place in Geneva, Switzerland in July 2015.

The 58th session of the Africa Commission on Human and People’s Rights

Drafting the binding treaty

LRC attorney, Sayi Nindi, spoke about community participation and the drafting process of the binding treaty. Some of the key points she raised are as follows:

The drafting process of the binding treaty is at its preliminary stage and no one knows how the treaty will look like.

The following still need to be determined, amongst other questions: what rights will be covered by the treaty; what companies the treaty should apply to; if the treaty should define in greater detail the content of states’ duties to protect human rights and ensuring access to justice for the affected people.

There are different views on whether corporations should be subjected to international law. Positivists say corporations should not be subjects of international law because no international law instrument recognises them as such. Other flexible interpretations say that corporations may have limited international legal personality. Pragmatists are of the view that the issue of whether corporations are subject to international law (and what legal responsibility can be imposed on them) is irrelevant as clearly corporations have both rights and responsibilities.

The development of this treaty has to be people- and community-centred. Local communities must be empowered to lead and participate in this process. They must bring their experiences to the table.

Communities have to bear the brunt of the so-called “development” that allegedly comes with transnational corporations.

There’s a clear gap in the international human rights law framework in its failure to address human right abuses by transnational corporations. They can now participate in debates and resolutions. This is the perfect opportunity to state the importance of Free, Prior and Informed Consent (FPIC)* and insist on it to be a requirement for developmental projects.

African civil societies should lobby their governments to participate and contribute at the IGWG sessions.

Cases that the LRC are litigating were used to illustrate how the treaty would be beneficial in situations where individuals or communities are victims of human right violations by multinational corporations. There are many examples on the continent where victims of human rights violations perpetuated by multinational corporations are left with no recourse if they solely relied on their domestic laws, which may not be as effective as an international instrument such as the binding treaty.

The LRC have been working with the South African government and we were encouraged that other civil society organisations do the same. The participants were informed of ways in which they can engage with their governments in order to promote the treaty movement at the UN level. A draft letter to be sent to governments was offered to those in attendance.

Right to Development

LRC attorney, Wilmien Wicomb, spoke on Right to Development as enshrined in the African Charter on Human and Peoples’ Rights and Free, Prior and Informed Consent. She raised the following key points:

The question is sometimes raised why we need yet another treaty with so many existing international and soft law instruments. It was noted that the treaty represents an acknowledgement that transnational corporations have become powerful enough as players in international relations and domestically to perform governmental functions; such as delivery of services and contributing to policy and development decisions. As such, the treaty represents a radical departure from existing international human rights law.

If that is the case, a key question that continues to be debated is whether transnational corporations should also be the bearer of international human right’s duties?

To answer this and other difficult questions, it is important to look at the current context. The current resource wave is targeting mainly rural communities – the poorest and furthest away from basic services – in South-South countries: in part because of their insecure and cheap tenure.

She noted that Africa can bring something different to the transnational corporation discussion. The African context has important differences: a different legal context (from, for example, Latin America with International Labour Organisation 169, FPIC entrenched in domestic law); a different history (in particular to indigenous peoples); old and new mining sectors.

From our unique legal context, Africa can contribute the African Charter and its Right to Development as a procedural and a substantive right; real choice with an emphasis on outcome and on community-driven development.

Furthermore, African customary law requires principle of consent, of local decision making, of local living law. Increased recognition of customary law must be utilised to counter common law and business-heavy legal frameworks.

There was a general discussion on why the treaty is not being favoured across the board, given that everyone is aware of human rights violations happening. There was general consensus in the room that the United Nations Guiding Principles on Business and Human Rights (UNGP) are preferred by the home states of the transnational corporations because of their voluntary nature. Much work and negotiation will be required before the treaty can reflect all we hope it will contain.

There was acknowledgement of the high standard of rights as set out in the African Charter. No one will be campaigning for anything less than that standard.

Mabatho Molokomme, Sayi Nindi, & Wilmien Wicomb

African participation

Clement Voule spoke on civil society advocacy and mobilisation. He emphasised that there has been marginal participation from Africa in the process thus far. He encouraged people to be a bit more proactive in their involvement in the upcoming IGWG session in October 2016. He noted that the content and its negotiations will take a long time. There may not even be a treaty in the end but this should not deter people from joining the process. He also stated that the treaty conversation should not be kept separate from the UNGP conversation. The treaty must be viewed as the next step in the process and not a replacement of the other. States reaching common ground on the UNGP may be a window of opportunity and a better space to discuss the treaty.

Outcomes

The side event induced a worthwhile conversation and we invite the proposals that were put forward. A participant who works for the African Commission proposed that they could assist us to host a panel discussion at the next African Commission session in November 2016 in order to reach a broader audience. We also made contact with one of the Commissioner’s working with the Working Group on Extractive Industries, who is interested in participating – through the working group – in the work of the binding treaty. The participants at the side event also suggested that this conversation be opened at the African Union Summit.

The Legal Resources Centre (LRC) and the Centre for Applied Legal Studies (CALS) co-hosted a public debate entitled “A binding treaty on transnational corporations and other business enterprises with respect to human rights: A good or bad idea?” on Friday 19 February at the University of Witwatersrand Law School. The panellists were Ana María Suárez Franco (FIAN International), Alan Fine (Russell & Associates) and Nomonde Nyembe (CALS). Mabatho Molokomme (LRC) facilitated. The debate proved an engaging platform for a diverse range of people to meet and talk corporate accountability. This piece presents some of the stories and opinions that were shared at the public debate.[i]

South Africa has an obligation to set an example in the debate surrounding the proposed binding instrument on transnational corporations and other business enterprises with respect to human rights (Treaty). It is one of the two countries[ii] that sponsored the Human Rights Council resolution creating a negotiation space towards such a Treaty. It is also the source of significant corporate activity, especially in extractive industries, with some very serious human rights implications. For example, in some instances, people in South Africa live near mines in appalling conditions; without access to safe water, staying in makeshift shanty huts next to sewerage and waste dumps, and breathing in the hazardous by-products of mineral wealth.

Africa needs to mobilise. African civil society should grasp this opportunity for change. But how, and to what end? What use is a Treaty to address these problems? Here is what was said.

Audience: Henk Smith, Attorney at the Legal Resources Centre

What current mechanisms do we have to address corporate human rights abuses and crimes and are they adequate? Is there a need for a Treaty? Might the Treaty distract from achieving short-term gains?

Alan Fine: The important question is what kinds of corporate breaches of human rights are not covered in state domestic law – whether statute, code, common law or other? What acts or omissions do supporters of the Treaty think need to be included in the treaty? Would a Treaty really add to the existing mechanisms under human rights law? Citizens should try to have gaps in their own legal systems filled before the Treaty eventuates, as this will likely take a long time to eventuate. Countries should develop National Action Plans (NAP) under the United Nations Guiding Principles on Business and Human Rights (UNGPs). State-owned enterprises should put in place systems for dealing with human rights of stakeholders, similar to Swedish state entities.

Nomonde Nyembe: While the strengthening of domestic systems to regulate corporate conduct is essential, corporations look for weak zones with little or no governance. Recognising that working towards a Treaty is a long-term process, the value of such a treaty, if ratified, would be its broad application to all states.

Ana María Suárez Franco: There is much work being done in relation to the current mechanisms. For example, FIAN International and others are conducting community support, awareness raising, domestic litigation – in affected communities and beyond, monitoring implementation of cases decided by courts, and working at all levels for compliance with extra-territorial obligations – including all human rights bodies. Other organisations are involved in assessing NAPs, particularly ahead of the 5th anniversary evaluation of the UNGPs in June this year. While standards such as the UNGPs might have some positive elements, they remain soft law and are just a step towards stronger legal protection at the international level, namely, hard law. We must be wary of the risks of touting human rights due diligence processes as a criterion to define corporate liability, due to the risk of misuse of these processes as company checklists that exclude corporations from accountability. Criteria for the determination of corporate liability should be centred on the affected communities and not derive from mere conduct obligations of corporations.

Pitso Montwedi(Department of International Relations and Cooperation): The corporate sector is exploiting weak national legislation and engaging in political corruption. In the context of grave human rights violations, strengthening national legislation is not necessarily the best route. Instead, we need to create an international criminal court for corporations that commit crime against human rights. In relation to NAPs, South Africa is not opposed to states going ahead with NAPs, but the country does not believe it is the way to go because the UNGPs were never inter-governmental, and they are voluntary and were never adopted by the General Assembly.

Audience commentary: NAPs are not taking us further; look at the utter inadequacy of the due diligences processes of South African companies Lonmin and Aquarius. They are merely pretending to comply with instruments, including UNGPs. What are we doing in domestic regulation to set an example? For example, Zambian communities are suffering some shocking abuse from South African security companies which are employed there by Canadian companies, such as First Quantum Minerals. Zambia has no recourse against the Canadian company, and so is using South African law as a bridge.

Audience commentary: Corporate dialogue is what we are looking for and we don’t necessarily need to look beyond the UNGPs to find it. In order for corporations to stop bad things happening, they must get involved and make sure good things are happening through, for example, due diligence worker councils and participation. Human rights due diligence is actually a very radical proposition, that is, what it means to put rights holders at core of corporate decision-making.

What are some major concerns that need to be addressed?

Suárez Franco: Three specific concerns of FIAN International relate to: (1) the weakness of existing remedy mechanisms, which do not cover the extraterritorial obligations, and the use of grievance mechanisms to hinder access to justice, (2) the risk of “human rights abuse-based dumping” – that is, the higher costs of those businesses that respect human rights compared to those that do not and so the associated need for a level playing field at the international level, and (3) the need to combat the fear of a negative impact on investments in those states supporting the Treaty process.

Nyembe: The Treaty should not be limited to gross human rights violations; this would miss the challenges that people face every day with human rights abuse. The Treaty should further be mindful of how corporate activities play out in a gendered way and be gender-conscious. This would allow the Treaty to not be narrow in its avenues for relief. For example, the victims of mine-related silicosis are not just the sufferers themselves, but may also include the women who must then care for the sick. Not only should the content be gender conscious, but so too should the process be sure to involve people from intersectional backgrounds. For those civil society members and NGOs who are not ECOSOC-accredited, the Treaty process should be more accessible.

In particular, the Treaty should attempt to address poverty. Economic development is consistently valued over other types of development. This approach exacerbates systems of poverty. While we recognise that not having access to essentials such as housing, education and water are individually violations of human rights, the collective outcome of “poverty” is not a violation. It should be. The Treaty process should be mindful of the current global economic status and disaggregate corporate benefit from the current wealth structure.

Suárez Franco: The Treaty should only impose human rights obligations on states and not on corporations. Imposing human rights obligations on corporations is legally impossible under international human rights law, since human rights are designed to limit state power, based on the principles of democracy and people’s sovereignty. Enforcement is only possible through the states, jointly or separately. Nonetheless, the Treaty could include a list of corporate obligations under administrative, civil and criminal law, which would be enforced by states, jointly or separately in compliance with their obligations to protect human rights, nationally or extraterritorially.

The focus of the Treaty should be on transnational corporations, including parent companies, subsidiaries and other businesses that are a part of the supply chain. The crimes in which diverse entities of transnational corporations are involved or from which they benefit require human rights extra-territorial obligations, and extra-territorial remedy. The Treaty must be based on clear principles – such as the primacy of human rights, dignity, good faith and transparency

Audience commentary: Poverty and socio-economic indicators are the challenge. The African Commission definition of the right to development is key; we must re-appropriate this concept for the communities and civil society, and not let corporations steal our human rights language around development.

Audience members

Who is responsible for poverty?

Audience commentary: This is a good conversation to have, but it is important to understand the context that transnational corporations operate in when they come to Africa, especially sub-Saharan Africa. Where does the responsibility lie with the notion of poverty as a human rights abuse? For example, if a mine is set up and people move into the area looking for employment when the project starts, are the living conditions of these people the responsibility of government or of the mining company? Would a Treaty addressing poverty deal with these issues?

Nyembe: There are “negative” obligations (for example, to respect) and “positive” obligations (for example, to fulfil). States hold both negative and positive obligations. Corporations more typically hold negative obligations. For example, they must not obstruct the realisation of a right or create a system of poverty. Ideally, however, they should also actively seek to realise certain rights by, for example, building houses and schools. If such contributions are seen as obligations, more positive effects could be felt in those areas.

What is the relevance of extra-territorial obligations?

Fine: Extra-territoriality cannot be ignored. The business community must acknowledge that international financial institutions and trade are run on the basis of extra-territorial law, much of which is useful to companies.

Suárez Franco: States alone sometimes are weak; states together can be stronger. If home and host states of a transnational corporation whose activities are resulting in human rights abuses cooperate to protect the human rights of affected communities and ensure remedies, the excuse of state weakness would not be valid anymore. We must connect African governments in order to strengthen the state and ensure implementation. Justiciability of extra-territorial obligations could support better results.

We need country ratification for the realisation of a Treaty. Even if NGOs support it, would it not jeopardise ratification to include economic social and cultural rights considerations?

Suárez Franco: The question of ratification will be difficult, but we must not allow it to stop the process entirely. Strong civil society pressure will be essential for realisation. In terms of form, it could take from the example of the Montreal Protocol and include follow-up mechanisms of revision, which advance the issues that cannot be agreed upon in the Treaty that is adopted during the first phase.

Fine: While the Treaty is a great campaigning idea, if the mechanism does arise, it will not be in the near future. A relatively small minority of states have expressed support for the idea in the Human Rights Council. Apparently the more in-depth the Treaty tries to go, the fewer countries that are likely to ratify it in the end. While this is not a reason not to go for it, it is a practical consideration to be grappled with.

Pitso Montwedi (DIRCO): People said the Tobacco Framework would never happen, yet it exists today.

Audience members

What can African civil society bring to the corporate accountability table?

Fine: Business must be persuaded that human rights due diligence and remedy is the right thing to do and in the best interests of shareholders. Civil society can play a role in persuading business of this. Business is vulnerable and sensitive to NGO work. Clever and effective work by NGOs can be influential.

Suárez Franco: While it is a difficult political battle, people will move due to suffering. Corporate abuse is touching the lives of all people around the world and awareness is increasing. States can be moved by civil society. Momentum in the UNGP NAPs process might even have picked up since the Treaty process began. Over 1000 organisations comprising the Treaty Alliance are pushing for the Treaty, at what is still the beginning of the process. Students and civil society organisations in Africa should get involved. Your knowledge will enable the development of a more interesting and representative instrument.

So… is a Treaty a good or bad idea?

Nyembe: Yes. CALS emphatically supports the Treaty in the context of the corporate-controlled and corporate-favoured system in which we operate.

Fine: We should continue if we think a Treaty would be more successful, but not be distracted from more immediate and practical work that can be done.

Suárez Franco: FIAN International and the Treaty Alliance do think a Treaty is an essential tool in the evolving character of international human rights law to ensure justice for all.

Conclusion

Africa has myriad stories to tell in the realm of corporate accountability. It is vitally important that these stories be shared on the international stage. African voices must be heard.

May the debate continue!

By: Anna Bulman

Disclaimer: The opinions expressed by the Realising Rights bloggers and those providing comments are theirs alone, and do not reflect the opinions of the Legal Resources Centre. The Legal Resources Centre is not responsible for the accuracy of any of the information supplied by the bloggers.

[i] Stories and opinions, where not those of the three panellists, have not necessarily been attributed to specific contributors at the debate. For a copy of the notes taken at the debate which provide this context, please contact the author Anna Bulman at anna@lrc.org.za.